People v. Sanchez

• Decision Date: 05 November 1997
• Docket Number: No. B104533,B104533
• Citation: 58 Cal.App.4th 1435,69 Cal.Rptr.2d 16
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 8520, 97 Daily Journal D.A.R. 13,739 The PEOPLE, Plaintiff and Respondent, v. Francisco J. SANCHEZ, Defendant and Appellant.

Page 16

69 Cal.Rptr.2d 16

58 Cal.App.4th 1435, 97 Cal. Daily Op. Serv. 8520,

97 Daily Journal D.A.R. 13,739

The PEOPLE, Plaintiff and Respondent, v. Francisco J. SANCHEZ, Defendant and Appellant.

No. B104533.

Court of Appeal, Second District, Division 7, California.

Nov. 5, 1997.

As Modified Dec. 2, 1997.

Review Denied Feb. 18, 1998.

[58 Cal.App.4th 1438] Corinne S. Shulman, under appointment by the Court of Appeal, Hydesville, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Robert Carl Schneider and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

FRED WOODS, Associate Justice.

A jury convicted appellant, Francisco J. Sanchez, of first degree murder. He appeals his conviction contending the trial court erred in failing to advise the jurors of their power to nullify the verdict and coerced the verdict by warning that any juror who could not follow the law would be excused from the jury. In addition, he claims defense counsel rendered ineffective assistance by failing to object to prejudicial and irrelevant gang evidence. Finally, appellant argues the 1994 revised version of the CALJIC instruction on reasonable doubt was constitutionally flawed.

We hold a trial court is not required to instruct on the jury's power of nullification. We also conclude the appellate record does not affirmatively establish counsel's performance was deficient or that appellant suffered prejudice from counsel's alleged failure to object to admission of gang evidence. We further find the instruction on reasonable doubt is not constitutionally deficient. Accordingly, we affirm the judgment of conviction.

FACTS AND PROCEEDINGS BELOW

The victim, Jesus Romero, was a professor of Spanish at East Los Angeles Community College. In 1994 he lived alone in a new two-story home in Monterey Park. He regularly drove a friend's red Toyota Camry. His friends and relatives knew him to be homosexual.

In the months preceding his death Romero became depressed and reclusive. Litigation over construction defects in his home made him even more depressed. He used rock cocaine. Members of the State Street Locos (SSL) gang often supplied him with drugs. He frequently allowed them to have parties at his house and spend the night. During this time Romero's sister became concerned about Romero's deteriorating condition. She took the liberty of photocopying credit cards and other documents Romero kept in his wallet in the event she needed to seek a conservatorship for him.

On Monday, October 3, 1994, Alejandro "Alex" Almarez, whose SSL gang nickname was "Bullet" and Alfredo Flores, whose SSL gang nickname was "Pony" visited Romero's home accompanied by two women. Appellant is also an SSL gang member. His gang nickname is "Scooby." Around midnight appellant arrived at Romero's home to join his friends. Romero refused him entrance and told him to leave. Several months before Romero caught appellant attempting to steal a bottle of his Remy Martin cognac and made him put it back. A few weeks before Romero noticed $200 in cash was missing and accused appellant of taking his money. Romero became angry and ordered appellant out of his home.

Flores, Almarez and the two women spent the night at Romero's home in the two bedrooms downstairs. They left the following morning, October 4, 1994. As they left Romero called out to them from his upstairs bedroom and told them "good-bye" and to "take it easy."

On Wednesday, October 5, 1994, Ms. Cynthia Manchaca left her house to go to work at 5:30 a.m. She lived on Topaz Street in Los Angeles. She saw a red Toyota Camry parked across from her house near a school parking structure. The car was not there the night before.

Appellant's girlfriend lived a few blocks away from Topaz Street on Amethyst Street.

At approximately 10:30 p.m. on Friday, October 7, 1994, Ms. Manchaca looked out her window and saw a white Nissan station wagon pull up to the red Toyota Camry still parked across the street. Three Hispanic Appellant's father owned a white Nissan station wagon. Months later Ms. Manchaca identified a photo of appellant as resembling the driver of the white Nissan.

men got out of the white car and put things into the backseat of the red Toyota.

Meanwhile, on Wednesday, October 5, 1994, appellant went to Auto Trenz in Montebello. The store sells and installs auto alarms and stereos. Steven and Maria Villescas owned the store and operated it with the assistance of Edgar Ruiz. Appellant had two of Romero's credit cards. He told Ruiz he wanted to buy "some really good stuff," "anything." Gang members regularly patronize the store but it was very unusual for gang members to have or use credit cards. Neither of the Villescases had yet arrived at the store and Ruiz attempted to reach them by telephone. While Ruiz was on the telephone appellant walked behind the counter and operated the credit card authorization machine himself. Ruiz asked appellant how he got the credit cards. Appellant replied they belonged to "some man" who "wouldn't know" "because he was dead." Appellant told Ruiz he had "smoked" the man and had his body.

By the time Steven Villescas arrived at the store appellant had already processed two credit card receipts for $500 each. Appellant told Villescas the owner of the cards would not know because he got them from "some fool he smoked last night." Appellant bragged to Villescas, "Yeah, I smoked him and dumped the body down by my pad."

Villescas knew something was the matter because gang members always paid in cash. On occasion they paid Ruiz in drugs for installation work but they always paid Villescas in cash. Ruiz and Villescas told appellant he would have to wait three days for the credit to clear before he could pick up his merchandise. Appellant agreed to wait and said he would be back on Friday. Appellant left the store and drove away in a white Nissan station wagon. Villescas did not call police because he did not want to get involved. In addition, he was "afraid of what might happen." Instead, Maria Villescas, who did the bookkeeping for Auto Trenz, voided the credit transactions.

Later in the day on Wednesday, October 5, 1994, someone used Romero's credit card at Family Discount Shoes located at Sixth and Broadway Streets in Los Angeles.

On Friday, October 7, 1994, appellant learned the charges he made at Auto Trenz did not clear. He went to Auto Trenz with some friends to retrieve the receipts. The Villescases and Ruiz told him there were none. Both Maria and Steven Villescas overheard appellant tell his friend he got the credit cards "from some fool he smoked."

On Saturday, October 8, 1994, Romero's sister let herself into Romero's home with her key. She instantly knew something was wrong. Romero was a fastidious person who loved his pets. She saw trash lying everywhere downstairs. She found one of Romero's dogs locked in a closet. She found Romero's wallet empty and open lying on the kitchen counter. She thought her brother might be dead and called police. Police found Romero's other dog lying dead in another downstairs bathroom. They did not find Romero. Police helped Romero's sister file a missing person report.

On Sunday, October 9, 1994, Mr. and Mrs. Manchaca and one of their neighbors on Topaz Street noticed a foul odor and blood coming from the red Toyota Camry which was still parked across the street. Police found Romero's decomposing body wrapped in a carpet stuffed into the trunk of the car. In the backseat of the car police found blankets, an answering machine, cassette tapes and eyeglasses. Romero's housekeeper identified these items as having been taken from Romero's home.

An autopsy confirmed Romero died from a single gunshot wound. The bullet entered the back of his head and exited through his neck.

Police officers returned to Romero's house with Romero's sister. Criminologists found blood stains and blood smears in the downstairs bedroom and adjoining bathroom. It appeared someone had attempted to clean up the blood stains. Police found drag marks leading from the downstairs guest bedroom, across the living room hardwood floor, and to Police brought Romero's housekeeper to Romero's house. She identified specific items missing from the home: a VCR, stereo speakers, a telephone answering machine, pictures, and a rug, sheets and blankets from the downstairs guest bedroom. She identified the rug, blankets and answering machine found with Romero's body as the items taken from the downstairs guest bedroom.

the garage. The criminologists found traces of blood in the marks in the hardwood floor. Criminologists found no blood evidence upstairs.

Police found no evidence of forced entry. They found a spare key lying on the garage floor.

Romero's sister gave police her photocopies of Romero's credit cards and critical documents. On November 1, 1994, detectives went to Auto Trenz to investigate who had used Romero's credit cards at the store. They showed Mr. Villescas photographs. He told the detectives he did not recognize anyone in the photos. "Taco Man," an SSL member, was in the store and overheard Villescas' conversation with the detectives. When the detective left he told Villescas, "You better not say nothing about that shit because you guys are going to get in a lot of trouble."

The detectives returned later that day to request the credit card receipts. Mr. Villescas was alone. He told the detectives he had not been truthful before and told them all he knew about the situation. He identified appellant as the person using Romero's credit cards. Later Mrs. Villescas and Ruiz similarly identified appellant as the person claiming to have killed Romero and as the one using his credit cards.

After appellant's arrest Mr. Villescas went to the East Los Angeles sheriff's station to meet with appellant's defense counsel and...